The court granted leave to appeal an order amending an indictment to reduce five counts alleging endangering the welfare of a child through sexual conduct from second-degree to third-degree charges. At issue is whether defendant, a pediatric surgeon who the State alleges molested four teenage patients during and after medical examinations, had a "legal duty for the care of" his victims or had "assumed responsibility for the care of" his victims within the meaning of second-degree endangering under N.J.S.A. 2C:24-4(a)(1).
The court held that although defendant had a professional duty to refrain from sexual contact with his patients, under the Supreme Court's narrow interpretation of N.J.S.A. 2C:24-4(a)(1) in State v. Galloway, 133 N.J. 631 (1993), the State must prove defendant had a "continuing or regular supervisory or caretaker relationship" with his victims to establish second-degree endangering. The evidence presented to the grand jury, even when viewed in the light most favorable to the State, instead suggests defendant, who treated the victims as a specialist for acute medical conditions, had limited and infrequent contact with his victims more akin to the "temporary, brief, or occasional caretaking functions" the Court determined in Galloway to fall under what now constitutes third-degree endangering.
The court also held that the legal duty for the care element of second-degree endangering cannot be established by proving defendant violated N.J.A.C. 13:35-6.3(c), a regulation of the Board of Medical Examiners prohibiting sexual contact between a physician and his or her patient. The regulation subjects physicians who violate its provisions to disciplinary measures relating to their licenses to practice medicine, but not criminal sanctions.